# United States Court o f Ap peals For the First Circuit

No. 01-2737 ATC REALTY, LLC; SBA TOWERS, INC., Plaintiffs, Appellees,

v. TOWN OF KINGSTON, NEW HAMPSHIRE, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. James R. Muirhead, U.S. Magistrate Judge ]

Before Torruella, Lynch and Lipez, Circuit Judges . Robert D. Ciandella , with whom Robert M. Derosier and Donahue, Tucker & Ciandella were on brief, for appellant. Steven E. Grill , with whom Devine, Millime t & Branch, P.A. were on brief, for appellees.

September 5, 2002-2- TORRUELLA, Circuit Judge . Plaintiffs-appellees ATC Realty, LLC and SBA Towers, Inc. filed suit in district court seeking an order directing the Town of Kingston, New Hampshire to grant them all the permits necessary to construct a wi rel ess telecommunications tower in the town. The district court granted summaryjudgment in plaintiffs' favor on the ground that there was insufficient evidence to support the Town of Kingston's decision to denyplaintiffs' application to construct a towe r. Defendantappellant Town of Kingston ("Town" or "Kingston") appeals the district court's grant of summary judgment, arguing that the Town's rejection o f the plaintiffs' application is supported by substantial evidence. Because we conclude that there was substantial evidence to support the Town's decision in the record,

we reverse entry of summary judgment for plaintiffs and direct that summary judgment be entered for the Town. FACTUAL BACKGROUND Wireless service companies provide consumers with mobile telephone service. To activa te the technology upon which their service relies, these companies must construct a network of telecommunication towers that transmits low-power, high-frequency radio signals. Incapable of building this network alone, they rely on plaintiffs SBA Towers and ATC Realty (collectively, "SBA/ATC") to develop such telecommunication towers for them. Plaintiffs, in turn, lease antenna facilities on these towers to the wireless service companies.1 Like many municipalities, Kingston has enacted an ordinance that

regulates the siting of wireless telecommunication towers. See Kingston, N.H., Zoning & Building Codes art. VII, § 7.80 (1997) ("Telecommunications FacilityOrdinance"). Under the ordinance, an applicant seeking to build such a facility must obtain a conditional use permit from the Kingston Planning Board. See id. -3- In 1999, several wireless service providers noticed a significant coverage gap along Route 125 in the northern region of Kingston, New Hampshire. This gap left customers in the area without wireless telecommunications service and disconnected the telephone calls of mobile phone users passing through the gap. Seeking to rectify this problem, S BA/ATC applied to the Kingston Planning Board ("Planning Board" or "Board") for permiss ion to construct "an unlighted 180 foot free standing multi -use r telecommunication tower" on Marshall Road in Kingston. 1 Two months after the plaintiffs submitted their application, however, American Tower, a direct competitor, applied for a permit to construct a similar tower on Depot Road in Kingston.

After holding several public hearings, conducting on-site inspections of the proposed tower locations, and consulting a telecommunications expert, the Planning Board voted on October 17, 2000, to approve the construction of only one of the two proposed towers. In the same meeting , the B oard voted to deny the plaintiffs' application for a construction permit and, in a subsequent vote, to grant American Tower's application. Finally, the Board voted again to deny plaintiffs' application.

Shortly thereafter, the Planning Board issued a written decision formally adopting the results of the votes taken at the-4-

October 17 meeting. Using the Town's Telecommunications Facility Ordinance to defin e it s criteria, the Board rejected the plaintiffs' application on four grounds:

1) Based upon the purpo ses section of the Kingston zoning ordina nce letters C and E it is the responsibility of the Kingston Planning boardto provide for minimal impact siting and to require cooperation and coordination between telecommunications service providers in order to reduce cumulative negative impacts upon Kingston. 2) The location of [SBA/A TC 's] proposed location is in close proximity to residential abutters. While there are commercial users backing into the property, the majority of the abutting and nearby properties are residential andof a rural nature. The siting of this tower does not meet the intent of the ordinance to reduce adverse impacts on neighborhood aesthetics. 3) The design of the [SBA/ATC] tower does not prevent nor reduce the visual intrusive\ness [sic] along the NH Route 125 corridor. Minimizing the adverse visual impact is required by the Town’s ordinances. 4) The Planning Board hired a telecommunication consultant to assist in determining the technical viability of the SBA/ATC site. This consultant provided evidence that two proposed sites offered the same ability to cover existing service gaps. As a result, the SBA/ATC site fail ed to meet t he standard of section D) of the Town’ s ordinance which indicates that all other reasonable opportunities have been exhausted. In addition Section VII,. 3., paragraph h and j require the Planning Board to consider other factors in making decisions that include availabilityof existing towers and other structures and the availability of alternative siting locations. The Planning board has done this with respect to this denial. After their application was rejectedin writing, SBA/ATC filedthis suit in the United States District Court for the-5-

District of New Hampshire, claiming that the Board's decision was not supported by substantial evidence as required by statute. See 47 U.S.C. § 332(c)(7)(B)(iii). The district court granted summary judgment in plaintiffs' favor, and the Town filed this timely appeal. STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. See Straughn v. Delta Air Lines, Inc. , 250 F.3d 23, 33 (1st Cir. 2001).

Summaryjudgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admis sion s on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[T]o defeat a properly supported motion for summary judgment, the nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the nonmoving party." LeBlanc v. Great Am. Ins. Co. , 6 F.3d 836, 842 (1st Cir. 1993) (internal quotation marks omitted). In exercising

our review, we construe the record evidence "in the light most fa vorabl e to, and drawing all reasonable inferences in favor of, the nonmoving party." Feliciano de la Cruz v. El Conquistador Resort & Country Club , 218 F.3d 1, 5 (1st Cir. 2000).-6- DISCUSSION I. The T e lecommunications Act ("TCA") works like a scale that, inter alia, attempts to balance two objects of competing weight: on one arm sits the need to accele rate the deployment of telecommunications technology, while on the other arm rests the desire to preserve state and local control over zoning matters. 47 U.S.C. § 332(c)(7)(A)-(B) (1994 & Supp. II 19 96) ; see generally Southweste rn Be ll Mobile Sys. v. Todd , 244 F.3d 51, 61 (1st Cir. 2001). Accordingl y, tho ugh state and local governments have the power "to deny . . . request[s] to place, construct, or modify personal wireless service facilities," their decisions must be "in writing and supported by substanti al e vidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). This balance strengthens the decision making authority of local zoning boards, while protecting wireless service providers from unsupported decisions that stymie the expansion of telecommunication technology. See g eneral ly Brehmer v. Planning Bd. of Wellfleet , 238 F.3d 117, 122 (1st Cir. 2001).

Plai ntiffs SBA/ATC argue that they are entitled to summaryjudgment because the Town's rejection of their application is not supported by substantial evidence. "The TCA's substantial evidence test is a procedural safeguard which is centrally directed at whether the local zoning authority's decision is consistent with the applicable zoning requirements." Omnipoint Communications MB Op erations v. Lincoln , 107 F. Supp. 2d 108, 115 (D. Ma ss. 2000 )-7-

(citing Amherst v. Omnipoint Communications Enters., Inc. , 173 F.3d 9, 16 (1st Cir. 1999)). Substantial evidence "d oes not mean a large or considerable amount of evidence, but rather such evidence

as a reasonable mind might accept as adequate to support a conclusion." Cellular Tel. Co. v. Zoning Bd. of Adjustment of HoHo-Kus , 197 F.3d 6 4, 71 (3d Cir. 1999) (internal citations omitted). The Board's decision will thus withstand our scrutiny if it is "supported by . . . more than a scintilla of evidence." Cellular Tel. Co. v. Oyster Bay , 166 F.3d 490, 494 (2d Cir. 1999);

ac cord NLRB v. Grand Canyon Mining Co. , 116 F.3d 1039, 1044 (4th Cir. 1997) ("[Substantial evidence] requires more than a scintilla but less than a preponderance." (internal citations omitted)). II. This case does not involve a claim that the Board has effectivelyprohibited the provision of telecommunication services neededto close a service gap. See 47 U.S.C. § 332(c) (7) (B) (i)(II). Rather, the Board has granted permission to plaintiffs' competitors to build a tower which will close the service gap along Route 125. The only quest ion before us is whether the Board's decision to deny the plaintiff's a ppli cation is supported by substantial evidence. In determining that question, in the absence of any claim of procedural irregularity by the Board, we restrict

our review to the record before the Board. See Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals , No. 01-2472, 2002 U.S. App. LEXIS 14465 at *17-*18 (1st Cir. July 18, 2002); Todd , 244 F.3d at 58-8-

( quoting Penobscot Air Servs., Ltd. v. Fed. Aviation Admin . , 16 4 F.3d 713, 718 (1st Cir. 1999)). We do not review the question de novo; we must uphold the Board's decision unless it is not supported by substantial evidence.

Before scrutinizing the factors cited by the Board in defense of its decision to reject plaintiffs' application, we pause to consider what mode of analysis to apply. The Town argues that, in determining whether the Board's decision is supported by substantial evidence, we shouldnot compare the relative merits of the two applications. Instead, we should simply focus on whether there is sufficient evidence in the record to reject the plaintiffs' application. Conversely, the plaintiffs claim that the Board's votes to den y their application and to grant American Tower's application shouldessentially be treated as one decision. This approach, then, would require the Boardto provide substantial evidence for its decision to choose American Tower 's a pplication over the plaintiffs'.

For the purposes of this appeal, we assume, without deciding, that the comparative model proposedby plaintiffs is the proper analytical framework. Even aft er employing this more exacting model, however, we find that the plaintiffs have failed to demonstrate that t he B oard's selection of American Tower's bid insteadof the plaintiffs' is not supported by s ubst antial evidence.2 Pagacik noted, however, that American Tower's proposal to

construct a 140-foot tower would provide minimal overlap with the -9- III. In its written decision, the Board offered four reasons for rejecting the plaintiffs' appl i cation to construct a telecommunication tower. We address each justification in turn. A. Cooperation Among Service Providers

The first reason set forth in the Board's written decision for denying plaintiffs' application concerns the Town 's responsibilityto provide for minimal impact siting and to promote cooperation between competitors. Under the Telecommunications FacilityOrdinance, the Town is required to limit the construction of telecommunication towers by encouraging cooperation between competitors and having as many wireless service providers on a single tower as possible. Art. VII, § 7.80(II)(C). The Board felt that the plaintiffs' application did not adequat ely meet these objectives.

In defense of the Board's reliance on th is factor, the Town cites persuasive evidence in the record to support the conclusion that only one tower was necessary to rectify the coverage gap. For instance, Tony Wells, a radio frequency engineer for American Tower, stated that "t he cov erage for either [tower] proposal would be equivalent." In addition, Iv an Pag acik, an independent telecommunications consultant, informed the Board that "[t]he proposedAmerican Tower site at 140 feet does fill in th[e] [coverage] gap." 2coverage provided by nearby towers. This decreased overlap would

likelyaffect the ability of mobile telephone users to make a successful transition from coverage provided by an antenna on one tower to coverage provided by an antenna on another tower. This conclusion, however, is la rgel y irrelevant because the Planning Board granted American Tower permission to construct a tower 40 feet higher than the height at which Pagacik conductedhis t ests. As plaintiffs' counsel conceded at oral argumen t, th e higher a tower is, the stronger coverage it provides. Thus, it is reasonable to infer, especially at the summary judgment level, that the 40-foot increase in the tower's height went a long way in fixing any overlap deficie ncy. General support for drawing this inference can be found in SBA/ATC's own experimental tests, which show that the "coverage gap could not be filled at 140 [feet]," but it could be filled at 180 feet. Moreover, Pagacik allegedly told several Board members, without ambiguity, that only one tower was necessary since either of the proposed towers would suffice to cover the service gap.

3 Because the Boardspecifically dealt with minimal impact siting in its other rea sons for rejecting plaintiffs' application, we reserve our discussion on that issue until it is more pertinent. -10- Though this evidence may justify the Board's decision to construct only one tower, however, it provides no basis for choosing Ameri can Tower's application over the plaintiffs'. The crucial question, then, is whether the plaintiffs have shown that the Board's reliance on this factor to select American Tower's proposal over the plaintiffs' is not supported by substantial evidence. 3 Both SBA/ATC and American Towe r a ssured the Planning Boardthat they would allow competing wireless service providers to

use the antenna facilities on their towers. The only difference between the proposals is that wherea s th e plaintiffs' proposed tower coul d ac commodate six wireless service providers, American Tower could only hold five providers on its tower. Thus, in terms of willingness to cooperate and ability to serve wireless4 Plaintiffs also argue that the inferiority of the American Tower

proposal is evidenced bythe fact that American Tower still has not been able to lease the anten na facili ties on its tower to any wir eless service provider, despite the fact that its applicati o n was approved by the Board. However, it is too speculative to attribute American Tower's inabilityto c ontrac t with any wireless service providers to its tower's inferiority. The dearth of clientele may be a product of the fact that wireless service companies are waiting to see the outcome of thi s l itigation before committing to one tower or waiting to see if two towers are constructed in the Town, thereby maximizing competition and reducing lease rates. We thus give no weight to plaintiffs' speculative argument. -11- companies, the proposals are virtually identical, with the plaintiffs' application being marginally better. 4 B. Impact on Residential Properties and Neighborhood Aesthetics

The Board's second reason for denying plaintiffs' ap plicat ion for a conditional use permit was that their proposed tower was too close to residential abutters and had an adverse impact on neighbor hoodaesthetics. Under the Telecommunications FacilityOrdinance, the Town is authorized to cons ider the proximity of proposed towers to residential development and their impact on the surrounding aesthetics. Art. VII, § 7.80(II)(B).

The two proposed sites are largely indistinguishable with respect to their proximity to residential areas. Both sites have residential abutters and commercial businesses within close proximity. They are also essentially equidistant from the areas zoned for commercial use. Thus, the proposals are quite similar, if not identical, with respect to this factor.

In regard to the aesthetic impact of the towers, the Boardconsidered comments from residential abutters to the proposed-12-

sites. See , e.g. , Todd , 244 F.3d at 61 (finding substantial evidence of adverse visual impact where resident s spe cifically complainedthat the proposed tower w as of a different magnitude than anything else in the vicinity and was inconsistent with the residential uses around it). Several residential neighbors to the plaintiffs' site criticized SBA/ ATC 's tower for its adverse aesthetic impact. Resident abutters Elish a an d Steven Blaisdell objected to the proposed tower, arguing that it would destroy the "picturesque" quality of the surrounding area. Mariah Cha mpag ne submitteda letter characterizing plaintiffs' tower as an "eyesore" that should be situated in a more rural location. She also took issue wit h the fact that the tower would be located on property that was once listed by the state as being h istori cally significant. Tina Staublin echoedcon cerns over the adverse aesthetic impa ct t he tower would have on the neighborhood. Finally, Andrea and Almus Kenter expressed their displeasure over having a "clear view" of the proposed tower from their home. They also emphasi zedthe fact that the tower's construction would be inconsistent with the surrounding bucolic area.

Thus, nearly forty percent of the residential abutters to the plaintiffs' proposedsite opposed the application on aesthetic grounds. Conversely, the Board did not receive a single aesthetic objection to the American Tower proposal. Moreover, at least one Boardmember at ten ded a crane test on American Tower's proposed site, which involvedelevating a crane to 180 feet to determine the visibilityof the proposed tower from the surrounding neighborhood.-13-

The results of the test demonstrated that "the crane was very di fficul t to see," which may explain why no aesthetic objections were made to the American Tower proposal.

Plaintiffs largely ignore the results of this empirical test and concentrate their attack on what they perceive to be the easier target: the residential abutters' comments. SBA/ATC argue that local residents cannot defeat a tow er proposal merely by trumpeting "negative comments that are applicable to any tower, regardl ess of lo cation." Todd , 244 F.3d at 61. Because they characterize the residential abutters' comments as generalized aesthetic objections, plaintiffs conclude that the Board incorrectlyreliedupo n this evidence to distinguish between the two proposals.

Though several of the abutters' objections to the visual impact of the plaintiffs' tower specificallyadd ressed why the proposedfacility was inappropriate for the chosen site, we will assume, for the sake of argument, that the abutters' comments were

so general that they could apply to any tower. Even assuming as much, however, the Board correctly relied on this evidence in light

o f the f acts of this unusual case. As noted, courts have consistentlyheld that a " few generalized expressions of concern with 'aesthetics' cannot serve as substantial evidence on which [a town] coul d base [ a] denial." Oyster Bay , 166 F.3d at 496. However, these rulings have not been made in the context of a town deciding between two proposed towers. Rather, they have been made in cases in which towns have rejected the only proposed tower-14-

application before them. See , e.g. , Todd , 244 F.3d at 52; PreferredSites v. Troup County , No. 01-14182, 2002 WL 1473139, at *2 (11th Cir. July 10, 2002); Telespectrum, Inc. v. Pub. Serv. Comm'n of Ky. , 227 F.3d 414, 418 (6th Cir. 2000); Omnipoint Corp.

v. Zoning Hearing Bd. of Pine Grove , 181 F.3d 403, 407 (3d Cir. 1999). In the latter context, courts fear that local governments maybe relying on abutters' general aesthetic objections to mask a de facto prohibition of wireless service. See generally Todd , 244 F.3d at 61.

In contrast, the instant case, given the mode of analysis

we have employed, involves the Board's comparison between two

co mpeting proposals and its selection of American Towe r' s application over the plain tiffs'. The fact that the Board ult imatelygranted a permit to the plaintiffs' competit o r demonstrates that the Board is not generally hostile to the construction of telecommunication towers. In this context, when a planning board has decided to construct a tower and must decide which of several proposed towers to construct, it is perfectly reasonable for the Board to consider, and be swayed by, the general aesthetic concerns of residential abutters, especially where, as here, the proposed towers are otherwise virtually identical.

In sum, wherea s bot h applications are identical with respect to proximity to residential abutters, there is undisputed evidence that the plaintiffs' application would have a stronger adverse aesthetic impact on the surrounding neighborhood.5 Presumably, this visual test was conduct ed w hen the crane,

substituting for the tower, was in place.

6 Plaintiffs also fault the B oard for failing to consider the visual impact that the American To wer proposal would have on propertywith historical significance. See Telecommunications FacilityOrdinance art. VII, § 7.80(B) (stating that the Board may consider the impact that a proposed tower may have on "historically significant locations"). In this regard, several Board members observedthat the plaintiffs' proposal would have no visual impact on the historic district; however, no such finding was made with respect to the American Tower proposal. Though no specific finding was made regarding the visual impact that the American Tower proposal would have on the historic district of Kingston, the Board conducted seve ral p hotographic simulations illustrating the view of t he proposed tower from several locations. The Board also conducted an on-site inspection andtook several aerial photos of the proposed tower. Neither the simulations nor the photographs indicates any visual intrusion on the historic district of Kingston. -15- C. Visual Intrusiveness Along Route 125

The Board based its third reason for rejec t ing plaintiffs' application on the fact that "the design of the [SBA/ATC] tower does not reduce visual intrusiveness a long the Route 125 corr ido r." Though the record supports the Board's conclusion , it a lso indicates that both proposed towers would be visible from Route 125. However, the best evidence of minimal visual intrusiveness came after a Board member conducted a visual inspection of the American Tower site from Route 125. She concludedthat she "could hardly see [the tower] with the exception of one small spot . . . . She thought that if she were not looking for [the tower], it would not be seen." 5 Plaintiffs have presented no evidence to challenge this observation. 6-16-

D. Failure to Exhaust Alternative Opportunities

The final reason for denying SBA/ATC's application for a conditional use permit was that plaintiffs had fai led to exhaust all other reasonable opportunities. Pursu ant to the Telecommunications Facility Ordinan c e, the Board is directed to "[p ]ermit the construction of new towers only where all o the r reasonable opportu nities have been exhausted." Art. VII, § 7.80 (II)(D). The only other reasonable opportunity available here was the competing proposal. However, the plai ntif fs submitted their application to the Planning Board two months prior to American Tower's application. Thus, at the time SBA/ATC applied, American Tower's non-existent application could not have provided a reasonable opportuni ty that the plaintiffs were required to exhaust. The Board also rejected the plaintiffs' application because it found that plaintiffs had failed to consider the availabilityof existing sites. More specifically, because the Boardgranted American Tower's application before its final vote to reject the pla inti ffs' application, the Board decided not to approve the plaintiffs' application because a reasonable

a lternative opportunity existed -- that is, American T ower' s recently approved site.

However, given the comparative framework we have employed, this factor does not provide a basis for choosing American Tower's proposal over the plainti ffs'. It assumes that-17-

American Tower has been selected and faults the plaintiffs for not exploring that existing option. Thus, this justification assumes preciselywhat we are trying to determine: whether there is substantial evidence in the record to support the Board's selection of American Tower's proposal over the plaintiffs'. E. The Results

After reviewing the record, we find that the plaintiffs have failed to demonstrate tha t the Board's selection was not supportedby s ubst antial evidence. The Planning Board was presented with two proposed towers that were virtually identical: the towers were of the same height; covered the same area; accommodatedalmost the same number of wireless providers; could be seen, in comparable fashion, from Route 125; had resid enti al abutters; an d were roughly equidistant from commercial zones. There is only one substantive difference between the proposed towers: unlike American Tower's application, plaintiffs' proposal engenderedmuch opposition due to its adverse impact on the surrounding neighborhood aesthetic.

We must reiterate that o ur review is not focused on whether the Planning Board made the best or the correct decision. See AT&T Wireless PCS, Inc. v. Winst on-Sal em Zoning Bd. of Adjustment , 172 F.3d 307, 314 (4th Cir. 1999) ("The reviewing court cannot replace the agency's judgment, even if the court could have reacheda justifiably different conclusion between two conflicting views had it r eviewed t he matter de novo ."). Rather, we must simplydetermine whether the plaintiffs have demonstratedthat the-18-

Board's decision to choose American Tower's application over their application is supported by substa ntia l evidence. Given the extreme similarity between the two proposals, and the Board's justifiable reliance on abutter comments to dis t inguish between them, we find that more than a s cintilla of evidence exists to support the Board's decision and direct the district court to enter summary judgment in favor of the Town. IV. This case comes to us after a decision based on cross motions for summary judgmen t. Cross motions do not necessarily indicate agreement by the parties as to the material facts in the record. See Boston Five Cents Sav. Bank v. Sec'y of the Dep't of Hous. and Urban Dev. , 768 F.2d 5, 11-12 (1st Cir. 1985); Wileyv. Am. Gree tings Corp . , 762 F.2d 139, 140-41 (1st Cir. 1985). But here, as we have stressed, the basis for decision is limited to the factual record that was before the Board. In this situation, it is appropriate for an appellate court to not only reverse a grant of summary judgment for one party, but direct its entry to the other party. See Wightman v. Springfield Terminal Ry. Co. , 100 F.3d 228 (1st Cir. 1996) ("Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law

on facts that are not disputed." (emphasis added)). Because there is substantial evidence in the undisputed facts before the Board to support its decision, we direct entry of summary judgment for the Boardand dismissal of this case. Our decision is further supportedby the clear aim of the TCA, echoed in our precedents, of-19-

expediting resolution of litigatio n ove r placement of wireless telecommunication facilities. See 47 U.S.C. § 3 32(c) (7)(B)(v) (establishing expeditedprocess for such challenges); Nat'l Tower , 2002 U.S. App. LEXIS 14465 at *24-*25. CONCLUSION For the foregoin g reas ons, we reverse the district court's grant of summary judgment an d e ntersummary judgment in favor of the Town.